Fair Transactions in Subcontracting Act 2008Ra609

○○ (58 years old, male)

Sungnam-si Subdivision-si, Sungnam-si

Law Firm LLC, Attorney Park Jae-soo

Attorney Ji-O, Ansan-O, Kim ○

Suwon District Court Order 2008 and 1690 dated October 17, 2008

August 3, 2010

The decision of the first instance shall be revoked.

No appellant shall be punished by a fine for negligence.

1. Facts of recognition;

The record reveals the following facts:

A. From June 29, 2005 to July 20, 2005, the Fair Trade Commission had the Samsung Electronic Stock Companies Co., Ltd. (hereinafter referred to as the “Non-Party Company”) undergo an investigation into the actual condition of the subcontract transactions in the IT venture sector.

B. At the time, the appellant was working as the first group for the purchase of the radio business unit of the non-party company at the time. The investigator of the Fair Trade Commission requested the appellant to peruse the phish language, which is the internal communications network of the non-party company, in order to verify the suspected violation of the Fair Transactions in Subcontracting Act, including the reasons for the change of the purchase price, which is an important proviso to the determination of the unfair subcontract price in the process of the investigation. However, the appellant rejected it on the grounds that the company’s confidential information and personal information were protected.

C. The Fair Trade Commission applied Article 30-2(1)3 of the Act on the Fair Transactions in Subcontracting on April 8, 2008 to the appellant on the ground that the appellant rejected and hindered the investigation into the violation of Article 50 of the Monopoly Regulation and Fair Trade Act. The Fair Trade Commission imposed an administrative fine of KRW 20,00,000 on the appellant.

D. Although the appellant raised an objection against the disposition imposing the above administrative fine, the Suwon District Court rendered a decision of the first instance that "the appellant shall be punished by an administrative fine of KRW 20,00,000, and KRW 00,000, after going through the examination of the case."

2. Determination

A. Relevant statutes

(1) Fair Transactions in Subcontracting Act (hereinafter referred to as "Act")

Article 27

(2) Investigations, hearing of opinions, and correction by the Fair Trade Commission necessary for the enforcement of this Act.

Article 50 (Violations of the Monopoly Regulation and Fair Trade Act)

Article 51 (Investigation, etc.) and Article 51 (Recommendation for Correction of Violations)

Article 30-2

(1) Any of the following persons shall be punished by an administrative fine not exceeding 30 million won:

3. The provisions of Article 27 (Application Mutatis Mutandis of the Monopoly Regulation and Fair Trade Act) (2).

Article 50(2) of the Monopoly Regulation and Fair Trade Act (Investigation, etc. of Violations)

a person who refuses, interferes with, or evades an investigation under the provisions of

(2) Monopoly Regulation and Fair Trade Act (hereinafter referred to as the "Fair Trade Act")

Article 50

(2) If the Fair Trade Commission deems it necessary for the enforcement of this Act, it shall enforce this Act.

A public official under his jurisdiction at the office or workplace of an enterpriser or an enterprisers organization.

Accessing business and management status, books and documents, computerized data, and audio recording materials;

Other data or articles prescribed by the Presidential Decree may be inspected, and they may be exchanged.

The parties, interested persons or staff at a designated place under the conditions as prescribed by the Ordinance of the Ministry;

A statement of a person may be made to hear the statement of the person.

(3) Public officials who conduct an investigation pursuant to paragraph (2) shall be as prescribed by Presidential Decree.

(d) Data necessary to investigate business entities, business entities' organizations, or their executives and employees;

(b) An order to submit materials or things or provisional holding of presented materials or things may be issued.

B. Key issue of the instant case

An investigator of the Fair Trade Commission shall peruse phishing, which is an internal communications network of the non-party company, to the appellant.

Whether the requested act is within the scope of legitimate performance of duties prescribed by relevant statutes.

C. Determination

According to the records, Washington is used for the transmission of report and approval documents for the company business as the intra-company communication network of the non-party company, and for the storage of electronic bills and materials approved. The investigator of the Fair Trade Commission has obtained approval of major documents related to subcontracting within the bidding, and the non-party company, including the appellant, has conducted an examination of the subcontract itself in preparation for the investigation by the Fair Trade Commission, and submitted a document using the bidding by arranging the reasons for the change of unit price and the reasons for the adjustment of transactions, such as the "regular NEGO, integrated NEGO, collective NEGO, and electronic vehicle cost policy guidelines."

In particular, in the decision of April 3, 2008 by the Fair Trade Commission (2464, 2005) that imposed the fine for negligence on the appellant, there is an institutional device to impose the duty of confidentiality on the investigating public officials in Article 27 (3) of the Act and punish the case of violating the duty of confidentiality. In order to confirm the facts of the suspicion of the violation of the Act, it is necessary to read the writing in order to confirm the contents of the suspicion of the violation of the Act, the request for the reading of the writing is justifiable.

However, it is clear that the investigation conducted by the Fair Trade Commission cannot violate or avoid the warrant requirement in relation to the search and seizure stipulated in Article 12 of the Constitution, and Article 50-2 of the Monopoly Regulation and Fair Trade Act provides that "a private official who conducts an investigation within the minimum scope necessary for the enforcement of this Act" and declares the so-called principle of proportionality, it is reasonable to strictly define the scope of the right of investigation stipulated in Article 50 of the Fair Trade Act so that it can minimize the infringement of legal interests of those polled.

In this case, an investigator’s inspection of the entire internal communications network subject to the warrant rather than an investigation of computerized data as stipulated in the Act or a request for submission of data, is an act that leads to the search subject to the warrant. Therefore, in a case where an investigator is doubtful that a document, which is an important proviso of unfair unit price determination, is being delivered or kept through Washington, the investigator’s request for submission of such document or computerized data and investigation of such document or computerized data shall be made, even if in fact, the investigator does not grant the authority to access the internal computer network without limitation upon obtaining access to the internal computer network in order to find the documents, etc.

In addition, it is difficult to view it as an investigation within the necessary minimum scope under Article 50-2 of the Fair Trade Act because it reduced the right to access to the internal computer network of the non-party company by granting unlimited access to the non-party company's internal computer network and there is a concern that the non-party company's trade secrets or personal information of its employees might be exposed to the outside. It does not change because the Fair Trade Act imposes a duty

Therefore, it is reasonable for the appellant to refuse the request by the investigator of the Fair Trade Commission for inspection of Washington. Therefore, it cannot be imposed a fine for negligence by applying Article 30-2 (1) 3 of the Act to this.

3. Conclusion

Since the appeal of this case is well-grounded, it shall be accepted by the appellant, and the decision of the first instance court shall be revoked, and the appellant shall not be punished by a fine for negligence shall be decided as ordered.

judges of the presiding judge;

Judges Yellow-gu

Judges Shee-jin